A. Introduction: why multilingualism?
The topic of my lecture this afternoon is general – some people would even say too general. Moreover, the close relation between law and language is so obvious that one could wonder if it is appropriate to treat such a question in the framework of this special event which is AGORA. On the other hand, one cannot but notice that there are legal scholars present here today, from different countries and with diverse mother tongues, following a weeklong programme in English in a German university. In order to communicate and make yourself understandable and intelligible, you have to choose a common instrument, a language among all those which are spoken in our world. What are the reasons for this choice and are they in any way linked to the general question on the relation between law and language?
It is clear that – as it happens in other disciplines – language is the very instrument, the vehicle of law. In reality, law is the intersection of language and power, while lawyers use words in order to persuade, to justify and to govern. There has been an extensive theoretical and philosophical analysis of the relation between law and language in many contributions to the general theory of law, as well as of the fact that linguistic phenomena (ambivalence of terms, use of metaphors etc.) can be a source of delicate semantic and, therefore, legal problems.
One can imagine that these problems become even more complex when a legal idea must be expressed in more than one language, with a multiplying effect if a third, a fourth and so on language is added, which is a normal phenomenon in multinational, supranational and international entities. In this context, the question “law and language” changes into “law and languages”, and this is exactly the case in the European Union (EU). Here, we have to face linguistic issues in form of an extended – if not extreme – multilingualism, which is only logical, because the EU is based on the coexistence of all actually 28 national legal orders and their respective cultural backgrounds.
The linguistic literature normally divides multilingualism into its individual, social, and institutional forms1 . Individual multilingualism is related to the multilingualism of human beings; they may be qualified as multilingual, once they are proficient in more than one languages. Social multilingualism refers to the presence of several languages in one society, which occurs when more than one official language are recognized in the same state (Belgium, Ireland, Luxembourg, Malta). Finally, institutional multilingualism refers to the coexistence of several languages within supranational institutions. The EU promotes and practices all three forms of multilingualism.
Multilingualism within the EU can also be described on another basis. On the one hand, there are the respective language regimes applicable to administrative and court proceedings involving citizens and the EU institutions. Language choices are guided here mainly by criteria stemming from human and minority rights. On the other hand, we must distinguish the language regimes applicable to parliamentary procedures and consultations among representatives of the Member States. Those regimes are justified rather by aspects of the equal treatment of states. But in all cases, it is of highest importance to give citizens of the EU “access to European Union legislation, procedures and information in their own languages”2 .
B. Reasons militating in favour of multilingualism
Which are the reasons militating in favour of the vast multilingualism characterizing the EU3 ? What could be seen at first sight as an unjustified indulgence towards ‘small’ and “exotic” languages and as a waste of money is in reality a highly sensitive political and moral question. It is common knowledge that languages fulfill two functions that cannot easily be separated: a communicative function, consisting in the transmission of information in a broad sense, and a symbolic function, associated with cultural and political traits, for example with people’s sense of nationality. Therefore, it is not surprising that the solutions adopted by the EU often represent a compromise between different and contrasting visions about what multilingualism management is.
First, the reasons determining language management in the EU are of legal order. Given the direct and immediate impact that EU law has on the EU institutions themselves, on Member States and on the subjective legal situation of individuals, the question arises whether it is admissible to ask citizens and companies to comply with EU law without assuring first that this law is produced in a language that they master fully. Limiting the official languages would therefore impair equality of rights.
A second group of criteria for multilingualism management choices relates to political issues, and more specifically to democratic participation and the equality of representatives in EU political life. If the EU tries to engage in communication in the most ‘inclusive’ possible way, this is because this method is regarded as the most efficient in order to enable people’s participation in EU political life. Then, following the principle of the equality of political representatives, as well as
* The author is Affiliate Professor at Bucerius Law School, Hamburg.This lecture was given by Professor Skouris at the ATLAS AGORA 2016 conference at Bucerius Law School, Hamburg.
1 Federal Union of European Nationalities, «Linguistic diversity and multilingualism in Europe», 2014, p. 9 f. (available on www. fuen.org).
2 Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions: A New Framework Strategy for Multilingualism, COM(2005) 596 final (22.11.2005).
3 For a detailed analysis, see M. Gazzola, «Managing multilingualism in the European Union: Language policy evaluation for the European Parliament», Language Policy 5/2006, p. 393 f.
of the equality of social, professional or other categories that these bodies and institutions represent, limitations in the use of languages need to be avoided, because they risk to reduce the political weight of parties who cannot discuss issues in the language that they prefer. A system of equal treatment of languages has therefore to be established.
Third, multilingualism management is related to cultural issues. Since the Treaty of Maastricht, the EU was given the power to act in the fields of culture and training in support of actions undertaken by Member States (articles 151 and 149 of the former EC Treaty). In consequence, cultural diversity and the plurality of languages have been the object of greater attention and of protection and promotion efforts within the EU. Furthermore, given that cultural multiplicity, rather than cultural homogeneity, reigns within the EU, multilingual communication is a facet of the EU support to the linguistic and cultural diversity in the Member States.
C. Legal bases for the protection of multilingualism
Multilingualism and linguistic diversity constitute fundamental principles of the EU. According to article 3(3) of the Treaty on the European Union, the latter “shall respect its rich cultural and linguistic diversity, and shall ensure that Europe’s cultural heritage is safeguarded and enhanced”. In the same direction, article 22 of the European Charter of Fundamental Rights holds that “the Union shall respect cultural, religious and linguistic diversity”.
The multilingualism regime covers EU legal texts as well as EU institutions. As far as legal texts are concerned, the Treaties (article 55 TEU, article 358 TFUE) provide that they must be written in all 24 official languages of the EU, “the texts in each of these languages being equally authentic”. According to article 4 of the Council Regulation no 1/1958, determining the languages to be used by the former European Economic Community, “regulations and other documents of general application shall be drafted in the official languages”.
However, this does not apply to individual acts: the Court of Justice (ECJ) has ruled that “nor can the second paragraph of Article 248 of the Treaty, as amended by the Treaty of Amsterdam, or the Court’s case-law on the interpretation of Community law be relied on in support of a possible principle of equality of languages. Although equal account must be taken of all the authentic versions of a text when interpreting that text, that holds good only in so far as such versions exist and are authentic. Consequently, even if an individual decision is published in the Official Journal of the European Union and is therefore translated into all the languages for the information of citizens, only the language used in the relevant procedure will be authentic and will be used to interpret that decision” (ECJ, 9.9.2003, Christina Kik v. OHIM, case C-361/01 P, point 87).
Concerning the EU institutions, article 342 TFEU (ex article 290 TEC) holds that “the rules governing the languages of the institutions of the Union shall, without prejudice to the provisions contained in the Statute of the Court of Justice of the European Union, be determined by the Council, acting unanimously by means of regulations”. In 1958, the Council approved the above mentioned Regulation no 1, which is the text containing the basic provisions for the language regime of European institutions. At every enlargement and on request of the new Member States, the language regime has since been extended to new languages and the engagement of the EU towards multilingualism has been constantly confirmed.
D. Risks and challenges related to multilingualism
There are currently 24 official languages within the EU and legislation must be written in all of them. This entails the mobilization of important translation and interpretation services within the EU institutions and agencies. The multitude of languages provokes the multiplication of challenges and risks. But there are more concerns due to the linguistic variety in the EU than mere problems of logistic and organizational nature: each legal system within the EU has its own language of law, and, as a result, legal terminology, legal concepts and styles of legal discourse differ. The contrast in legal language and culture is particularly pronounced between legal orders belonging to the common law and to the romano-germanic legal families.
Consequently, in such a multilingual environment arise important questions of equality, transparency and legal certaintyfor the EU citizens. Accessibility of legally binding acts generally requires their publication in an official journal or, in the case of jurisprudence, in law reports. It is also necessary that binding legal acts be sufficiently clear for the citizen, if needed with the assistance of a lawyer, and foreseeable in their effects. Accessibility and intelligibility of EU law cannot be achieved unless every citizen can be provided with the texts in a language they understand.
The harmonization, the effectiveness and the quality of EU law are also at stake in a multilingual environment. Harmonization of national laws, which is a key element of the European integration process, can only be achieved if the EU legislation is applied in the same way in the different national legal systems. Many of the challenges in ensuring a harmonized application of EU legislation are therefore connected to issues of legal language. Tolerance of a certain degree of divergence is inherent to the integration process. However, where divergence is caused not by conscious decisions by the EU and the Member States but by differences in legal language, then divergence becomes less defensible.
E. Managing multilingualism in the functioning of EU institutions
It is interesting to note that, among other international organizations active on the European continent, the Council of Europe and the Organization for Economic Co-operation and Development work on a bilingual basis (English and French), while the Organization for Security and Co-operation in Europe applies a system of limited multilingualism (its official languages being English, French, German, Italian, Russian and Spanish). Concerning the EU, language management is based, as already stated, on a delicate balance of legal,
political and cultural criteria, which has led to the rejection of both radical models of monolingualism, i.e. the use of a single official and working language such as English, and of nationalization, i.e. the transfer to the Member States of the whole financial responsibility and workload of translation and interpretation of EU texts.
Intermediate solutions appear in fact as more apt to suit the need for balance of interests and for effectiveness within the EU. Consequently, the language management models applied are mostly those of reduced multilingualism, which means the use of only some working languages within the EU institutions and bodies such as the European Commission, the Court of Auditors, the European Central Bank and, to a lesser extent, in the European Court of Justice, and of controlled multilingualism, particularly within the European Parliament, the Economic and Social Committee, the Committee of the Regions. This second model basically aims at ensuring that all members of the institutions concerned, representing respectively the populations of member states, the forces of European economic and social life and regional and local authorities within the Union have the right to communicate in the language that they prefer. However, and in contrast to pure multilingualism, the controlled multilingualism model is based on the adoption of systematic management correctives, such as the use of pivot languages, the remote interpretation or the use of external freelance linguistic services4 .
It is necessary to stress that there is a de facto distinction between official and working languages, although no such difference is made in Regulation no 1/58. ‘Official languages’ of the EU are generally defined as those used in communication between institutions and the outside world, and ‘working languages’ of the EU as those used between institutions, within institutions and during internal meetings organized by the institutions. While the EU tries to adopt full multilingual communication in the 24 official languages concerning its relations with citizens and the Member States, communication in its internal activities are variably managed, depending on different articulations practiced in the choice and use of working languages.
Also, although article 6 of Regulation no 1/58 authorizes a certain degree of flexibility regarding the use of languages for internal activities, providing that “the institutions of the Community may stipulate in their rules of procedure which of the languages are to be used in specific cases”, there are no rules stating specifically which languages may be used as working languages. Hence, the choice of working languages is just a matter of practice and no language can a priori be excluded from being chosen – nor could it legally be, as the Regulation makes no difference between official and working languages. For instance, English, French and German are not the ‘official’ working languages of the Commission, but just the most commonly used languages for its internal activities, even though German is used far less than the other two. As for the Council, the equal treatment of the 24 official languages is largely respected for meetings of national ministers, as well as for meetings of the European Council, whereas fewer working languages are used in meetings of Coreper and certain preparatory groups.
Language management within the European Court of Justice is of particular importance,as it is related to the conditions of production of EU case law given that there are 24 potential languages of procedure for actions before the Court. Article 29 (5) of the Rules of Procedure of the ECJ states that ‘the President of the Court and the Presidents of Chambers in conducting oral proceedings, the Judge Rapporteur in his preliminary report, Judges and Advocates General in putting questions and Advocates General in delivering their opinions may use one of the [official languages] other than the language of the case’. In practice, however, the language used is mainly French and sometimes English, but during all stages of drafting, discussion and deliberation of judgments constant consideration is taken of the document’s subsequent translation needs.
F. Managing multilingualism in EU lawproduction and application
As European integration largely depends on the effective harmonization of national laws in fields of EU competence, it is obvious that any legal language differences observed between the Member States risk to create divergence in the way that European rules are understood and applied in the national legal systems, thus affecting the harmonization process. Harmonization of national laws is mainly achieved by means of secondary legislation: regulations and directives. While transposition into national law is normally not needed for regulations, directives, which are only binding as to the result, must be transposed by each Member State through national implementing legislation. The process of transposition enlarges the risk of linguistic and semantic divergence that is already inherent to the drafting of EU legislative texts and their translation into all official languages of the Union.
In this respect, it is useful to remind that proposals for directives are initially drafted by the Commission either in English or, less frequently, in French and the initial draft is translated into all official languages to allow for reactions from governments, national parliaments and interested parties and bodies. When the text comes to be debated in the Council of the EU, the discussions are based on one reference text, either the English or the French version. The amended text is then again translated into all the official languages for debate in the European Parliament. Following their adoption, directives are translated into all twenty-three other official languages, each language version having equal status. Each language version must produce the same effects in law, the text thus constituting a “multilingual expression of a single message”5 .
Problems of semantic divergence
Despite the expertise of translators and legal revisers in their task of ensuring coherence between the different language versions of EU legislation, problems of semantic divergence still
4 For further information, see M. Gazzola, loc. cit., p. 402 f.
5 G. Ajani & P. Rossi, «Multilingualism and the coherence of European private law», in : B. Pozzo & V. Jacometti (eds.), Multilingualism and the Harmonization of European law, Kluwer Law International, 2006, (.11.2005,ission ocial Commit- ing of Diverging Language Versions of a Community Law p. 84 (.11.2005,ission ocial Commit- ing of Diverging Language Versions of a Community Law
arise. The absence of equivalence of legal terms in the respective legal languages of the Member States, as well as semantic divergences produced on the occasion of translation and transposition of legal texts, makes it difficult to ensure a common and uniform meaning of EU legislation through the EU6 .
First of all, differences in the way the same legal terms are perceived in the Member States can stem from differences in legal principles, institutions and reasoning in each national legal order. As previously said, there is particularly high potential for semantic divergences between national legal systems belonging to common law and romano-germanic traditions. The risk of semantic divergence increases when the term in question expresses a concept not known in some legal systems (for example, the principle of “good faith” used in the Unfair Contract Terms Directive is widely known in romano-germanic legal systems but accepted with difficulty in English law). Then, divergence can be created during the process of translation itself, even when there is in principle no problem of legal equivalence, while, finally, the transposition of directives into national law can be the source of further divergence.
G. Why not reduce multilingualism in the EU?
Because of these semantic divergence risks it has been argued that the legislative multilingualism in the EU is self-defeating and even risks to be incompatible with the rule of law requirements of accessibility of law and ability to foresee its effects, as developed by the European Court of Human Rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms7 .
There is in fact a recurrent debate on the perspective of limiting multilingualism within the EU and proposals are formulated once in a while in favour of surrendering to simpler solutions and of taking into account the de facto dominant position of the English language in the European and international business world. The reasons advanced for reducing multilingualism within the EU are twofold: budgetary and organizational arguments are usually added to the above mentioned risks related to semantic divergences in the different linguistic versions of EU law.
However, proposals for reducing multilingual practices within the EU seem unlike to prevail, at least for the time being, considering first of all the Member States’ particular political sensibility in regard to this matter. Moreover, the argument related to the budgetary impact of translation services is not particularly convincing. According to rough estimates of the Commission`s DG Translation, the cost of all language services in all EU institutions amounts to less than 1% of the annual general budget of the EU, which, divided by the population of the EU, comes to around 2 euros per citizen per year8 .
But most importantly, far from endangering the rule of law as argued by some authors, the option to maintain multilingualism is motivated precisely by the necessity to ensure the rule of law within the Member States. Given that an impressive volume of legal acts (estimated at almost 80% of the legislation in total) that the national administrative and judicial authorities are called upon to apply is nowadays of European origin, it is essential that all EU legislative acts and EU case law continue to receive 24 official linguistic versions, in order that the national authorities preserve the possibility to use and apply the respective versions of the same text. These official linguistic versions should ideally continue to be provided by the EU translation services, which have developed a high degree of expertise and internal coordination in their field, rather than by the Member States themselves.
Maintaining EU multilingualism is, in consequence, crucial to ensure effective implementation of the EU law across Europe. In any case, several methods for minimizing semantic divergences in the different linguistic versions of EU law have been developed.
H. Methods for minimizing semantic divergence
In order to minimize semantic divergence that may occur during the drafting of EU legislation and in a general spirit of linguistic coordination9 , EU institutions apply constant controls of the consistency and coherence of the different linguistic versions of EU legislative acts. Controls culminate at the end of the legislative process, with the editing and finalization of legal texts by legal and linguistic experts. Meanwhile, the EU legislative language itself has been to a large extent standardized, not only through the work of EU translation services but also through the jurisprudence of the ECJ. Recurrent and autonomous concepts of EU law have thus acquired a proper Union-wide meaning and, consequently, equal effect in all Member States. Moreover, in order to ensure that European legislation is clear and unambiguous, the EU legislator frequently provides definitions for the terms used, a technique that has been borrowed from common law systems. Directives can thus contain whole definition sections (for example, the Environmental Liability Directive or the Product Liability Directive), while they also include preambles which set out the reasons for the legislation and its objectives and offer guidance to national judges in their interpretation of the EU texts.
The role of the ECJ in ensuring the uniform application of EU law is also significant. The Court accepts that “all the language versions must, in principle, be recognized as having the same weight and this cannot vary according to the size of the population of the member State using the language in question” (ECJ, case C-296/95, The Queen and Commissioners of Customs and Excise, p. 36) and bears in mind that, the European legislation being drafted in several languages, “an interpretation of a provision of Community law …involves a comparison of the different language versions” (ECJ, case 283/81, CILFIT, p. 18). At the same time, the Court underlines that “the object of ensuring that in all circumstances the
6 For extensive analysis and exemples on semantic divergence, see S. Taylor, «The European Union and National Legal Languages: an Awkward Partnership?», RFLA 1/2011, p. 105 f.
7 Th. Schilling, «Beyond Multilingualism: On Different Approaches to Handling of Diverging Language Versions of a Community Law», European Law Journal 1/2010, p. 48.
8 L. Guilloud-Colliat, «Le multilinguisme dans le fonctionnement institutionnel de l’Union européenne», RDP 5/2014, p. 1362.
9 On this question, see S. Taylor, loc. cit., p. 114 f.
4cmlaw is the same in all States of the Community” must be respected and that the aim is “to avoid divergences in the interpretation of Community law which the national courts have to apply” (ECJ, case 166/73, Rheinmühlen Düsseldorf v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel, p. 2). The clear preference for a uniform interpretation of Union law makes it, according to the ECJ, “impossible for a passage to be considered in isolation and requires that it should be interpreted and applied in the light of the versions existing in the other official languages” (ECJ, case 9/79, Koschniske v. Raad van Arbeid, p. 6).
When the ECJ is asked to provide an interpretation of a term but is faced with differences in the various language versions of the legislative text, it proceeds to a comparison of the distinct language versions in order to decide which one bears the correct meaning. In some cases, the Court will favour the language version of the text which is clearer. Also, when one language version leads to doubt, the Court often considers the semantic similarity of the other versions as significant. However, the most important factor for the Court is the aim or purpose of the legislation, and the linguistic version of the provision is considered as valid where it is perceived as corresponding to this aim. As the Court points out, “the different language versions of a Community text must be given a uniform interpretation and hence, in the case of divergence between the language versions, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms a part” (ECJ, case 30/77, Regina v. Bouchereau, p. 14, and case 372/88, Cricket St. Thomas, p. 19).
I. Conclusion: why multilingualism?
Multilingualism in the sense of a multilingual environment was previously examined rather as a source of challenges or obstacles to European integration. In this context, individual multilingualism, i.e. in the sense of an individual’s knowing many languages, can be an asset of the outmost importance, both for scientific and for practical reasons.
Only one linguistic version of EU legislation can be misleading; nowadays, one has to be able to compare ad understand other versions too. This capacity is important for every legal actor, including judges, and in particular national judges and lawyers practicing before national courts. As stated before, the ECJ can only be effective in assuring the uniform interpretation of EU law if the national courts correctly identify and refer questions on linguistic divergence to it. The national judges must therefore be able to examine more than one linguistic versions of the EU legal act in question. This cross-examination is necessary in order for the judge to be aware of the eventual uncertainty of meaning of the text, but this uncertainty will not be apparent if the judge relies exclusively on one national language version which appears in itself clear.
Knowing only one foreign language is not sufficient for those who aspire to work for the EU institutions either. Knowledge of at least two official languages other than one’s mother tongue is normally required. Even if there is a strong tendency towards the English language as the common language of our time, nobody should underestimate the importance of multilingualism as a decisive advantage for professional careers. Especially for young and ambitious people like you, English has become a condition for every academic post, a condition comparable to technical skills as computer-writing; it is not a distinctive element anymore. So, if you wish to improve your chances, you should be able to speak more languages – or, more precisely, you should at least read and use other languages than English.
For legal scholars, and in particular for those who study EU Law, I would suggest French and German and, why not, also Italian and Spanish, which correspond to the most important legal orders in the EU. These five languages are widely recognized as pivot languages in the Union. In any case, French and German seem to me necessary for acquiring access to the contributions of French and German authors as well as to the case-law of French and German courts. Imagine the advantage consisting in the capacity to study and use French and German literature and jurisprudence. How many times have you read in the newspaper that the German Constitutional Court or the French Council of State gave significant decisions in different fields and how valuable would it be if you had direct access to these judgments supposing you have to treat a similar case or to write an essay concerning the same legal problem? As for the EJC, I can assure you that being fluent in French and English is a condition for a job; also speaking German is a real asset, taking into account that a very big number of preliminary rulings stem from German courts.
It is a fact that the younger you start with foreign languages the easier you learn them. For that reason, I would like to encourage you to continue your efforts or to start immediately. However, it is never too late, even for more mature people. It is no secret that the judges arriving at the Court of Justice are not always fluent in French – I was myself far from being fluent in French when I joined the Court in 1999. I was therefore obliged to improve my French significantly, which I did, just as my colleagues also did and continue to do.
So, if I can send a message which could be of a certain value for you, I would say: Learn languages!